On July 6, 2010, the Holder Justice Department, allegedly without consultation with President Obama, filed suit in federal district court in Arizona to block the new Arizona law intended to enforce existing federal laws against unlawful immigration, something the federal government itself has patently failed to do. The suit asks the court for, among other things, an order restraining Arizona from implementing the new statute later this month as scheduled, pending the outcome of the litigation. It is evident that this was done for partisan political purposes, although it seems quite likely that the political results will not be those which the Obama administration desires.

The suit claims that the new Arizona law was preempted under the Constitution by federal law and is therefore unconstitutional. According to the Justice Department complaint:

In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex — and often competing — objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.

The complaint goes on at length to explain these claims. However, as analyzed here, there are no federal statutes on which a claim of preemption could legitimately be made:

While controlling immigration is a job of the federal government, Congress has never enacted a statute that expressly bars states from assisting it in the manner contemplated by the Arizona statute. Without any express preemption to rely on, the challengers must resort to making a more difficult “implied preemption” argument. This is a claim that the Arizona law conflicts with federal law, and therefore interferes with the fulfillment of congressional objectives. However, the numerous judicial precedents supporting the Arizona law will make this an uphill climb.

The only significant support for the suit must come from the notion that General Holder is the attorney general and therefore obviously knows best.

The complaint notes:

The Constitution affords the federal government the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, the federal government has broad authority to establish the terms and conditions for entry and continued presence in the United States, and to regulate the status of aliens within the boundaries of the United States.

In other words, the area of immigration has been preempted by the federal government and the individual states had better keep their noses out of it, or else. Otherwise, some foreign governments may be offended:

Mexican President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at http://www.c-spanvideo.org/program/293616-2. S.B. 1070 has subjected the United States to direct criticism by other countries and international organizations and has resulted in a breakdown in certain planned bilateral and multilateral arrangements on issues such as border security and disaster management. S.B. 1070 has in these ways undermined several aspects of U.S. foreign policy related to immigration issues and other national concerns that are unrelated to immigration.

Tough. Perhaps the Mexican government should do a better job on its own side of the border to diminish the incentives for its citizens to leave.

Furthermore, according to the complaint:

Mandatory state alien inspection schemes and attendant federal verification requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS resources away from its policy priorities. As such, the federal government will be required to divert resources from its own, carefully considered enforcement priorities — dangerous aliens who pose a threat to national security and public safety — to address the work that Arizona will now create for it. Such interference with federal priorities, driven by state imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.

One must wonder what the people killed in Arizona by illegal aliens engaged in drug and gang related activities might think about this if they were still capable of thinking about anything.

The complaint modestly fails to note that Article I, § 8 (the “Commerce Clause”) is also now viewed as granting the federal government nearly all power to regulate interstate commerce. During the reign of Good President Roosevelt II, this concept was extended and distended by the Supreme Court in many cases supportive of New Deal legislation. This was done with a little bit of persuasion from the president, who graciously offered to provide the Supreme Court with additional justices should the existing nine not be able to see their way clear to discover the true meaning of the Constitution unaided. Since then, it has been the guiding rule that all commerce within the individual United States is interstate in nature, even when no resources from outside the state in question are used and no sales of the product are made outside that state.

It follows ineluctably that all commerce is interstate, even the growing of wheat for domestic use, and not for sale in inter — or what was once considered intra — state commerce. Consistently, it would appear that all state efforts to regulate commerce must fall if the federal government so desires. There are too many examples of such state action to list in a single article, but here are a few:

State public utility regulation clearly affects interstate commerce because, for example, electricity generated in one state is often generated using coal and other resources mined or produced in other states and some of the electricity so generated is then “wheeled” across state lines and used in other states in homes and industry. The actions of state utility commissions, even regulating the prices at which electricity can be sold to homes within the state where generated, obviously impact on and can interfere with federal efforts to promote and encourage national security by ensuring a reliable, fail-safe, and environmentally sound supply of electricity.

Then there are state traffic laws; the federal government has mandated the use of seat belts and other safety devices in automobiles, and the transportation of people, goods, and services obviously affects commerce. Yet state and local police authorities enforce seat belt and other traffic laws; some states do so differently from other states.

The quality of education similarly affects commerce, since without a well educated labor force commerce and the economy upon which is it based would fall into disaster. The all-wise federal government has mandated standards for education, yet the individual states interfere by having at least some of their own standards. The adoption of text books in even one state, Texas for example, can make it uneconomic for interstate publishers of text books to create and sell text books other than those mandated by Texas.

Health care in one state can impact the provision of health care in interstate commerce. For example, if State A prohibits or restricts abortions to a greater extent than does State B, those who are unable lawfully to obtain abortions in State A are likely to travel to State B to have them.

The United States does not need uniformity in all things to the maximum extent possible and such was the intent of neither the Constitution nor of its authors.

The immigration statute recently adopted by Arizona is a modest, proper, and well thought out effort to protect its residents from the invasion by unlawful criminal visitors from outside the United States. The situation in Arizona is extremely flammable, and the refusal of the federal government to do the job with which it has been entrusted has caused matters to become increasingly dangerous and intolerable. Rather than attempt to thwart the efforts of Arizona, the powers of the federal government would be far better used by vigorously enforcing its own laws or at least standing back and not interfering with the efforts of Arizona to protect the rights and lives of its people.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.

Given that the federal government has plainly failed to fulfill its Constitutional responsibility for controlling the border, and that the Obama Administration has been unsuccessful at concealing its unwillingness to alter the status quo, under standard contractarian theory the states have resumed their original prerogatives as sovereign entities and may undertake the job for themselves. That would hold water even if SB 1070 was held to supersede federal immigration law, whereas the Arizona measure merely directs its peace officers to take fully legal steps to implement it.

The most plausible explanation for the DOJ suit is that it’s a political stroke: an attempt to curry favor with the Hispanic vote. But that could easily backfire against the Obamunists: non-Hispanic voters in the Democratic base poll as strongly supportive of the Arizona bill. The ultimate verdict, of course, will come on November 2.

There is indeed a very good chance that Obama’s people expect to lose the suit. They merely want to persuade those Hispanic Americans who perceive themselves as victim of white racism that the government is supposedly defending their interests. It’s somewhat cynical—and unlikely to succeed. I doubt if it will even encourage even a few more Hispanics to vote in November. This is perhaps a quintessential example of Obama’s desperation. He is compelled to focus on a secondary issue because of the lackluster economy and failing foreign policy.

I would hate to think Hispanics, or anyone else, is so pathetically gullible as to believe Obama is actually concerned about anything except their vote.
I do not want that type of uninformed people voting and deciding anything..

I find the 1st sentence of the article to be ludicrous; no way no how does Holder file this suit without Obuma knowing and approving of it.

That said, I don’t think the feds can win this case on the merits of the arguments they’ve presented. A smart judge will look two steps down the road and realize the havoc that a precedent in this case will set and he will judge find a way to quash it.

Voters by a two-to-one margin oppose the U.S. Justice Department’s decision to challenge the legality of Arizona’s new immigration law in federal court. Sixty-one percent (61%), in fact, favor passage of a law like Arizona’s in their own state, up six points from two months ago.

A new Rasmussen Reports national telephone survey finds that just 28% of voters agree that the Justice Department should challenge the state law. Fifty-six percent (56%) disagree and another 16% are not sure.

Further, as of yesterday, July 8, nearly $500,000 had been donated to assist Arizona in her defense of her immigration law.

Website contributions came from all 50 states, plus the District of Columbia and Puerto Rico, including nearly 2,000 from Arizona. Donations ranged from $5 to $2,000, with the vast majority between $10 and $100.

The AP examined about a quarter of the fund’s total contributions, and found only two that came from businesses.

Methinks that the Obama Administration may have blotted its copybook rather badly on this one.

Make Mexico a _Territory_ ; This gives the US Federal government
much more legal freedom of action to fight a short, brutal, but
victorious war against the Drug lords, and raise Mexico to state
status; Lots of shovel-ready jobs building up the infrastructure
without the restrictions of bureaucratic red tape.

The Arizona law in no way usurps federal immigration law. The Arizona law is nothing but clear, even handed specific guidance to Arizona law enforcement re: enforcement of the existing federal statutes (in the face of willful federal non-enforcement). The feds appear to be demanding intentional blindness by all other levels of law enforcement of violations of federal law.

This is much like saying that in the Jimmy Carter’s 55 MPH national speed limit era that no one but the FBI could write speeding tickets.

It is not Arizona who is usurping US immigration law – it is the feds (the executive branch specifically) themselves. The executive branch as sought to change policy without changing the law via selective (or non) enforcement of existing law. Rather than having the courage to propose a change in the actual law (to bring about their desired open border status) and face the voters on this issue – they have effectively changed the law through intentional non-enforcement.
In this law suit – the feds are not demanding that Arizona obey US immigration law. Arizona has every intention to obey US immigration law. The new Arizona law is simply enforcement instruction to law enforcement. What the feds DO seem to be demanding is that Arizona comply with the illegal executive branch policy of intentional non-enforcement of existing law.

In the Federalist no. 45, James Madison writes “The powers to several States will extend to all the objects which, in ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” I understand that to mean State has the right to protect it’s people and their property. Arizona is being invaded by Mexico and if the Federal Government refuses to enforce the federal laws then, Arizona must make and enforce laws for the protection of the people. The only thing that bothers me is that the liberals have been stacking the federal courts with activist judges for years, and I think that they are about to reap from that crop.

Arizona Vs. United States
What I see is that if Arizona prevails it will open the door to damages against the Federal Government.
I can’t wait.
Arizona can file a counter-suit and collect court fees and Attorney fees…BUT
Then I believe they could institute their own comprehensive Border Security Program, build a fence, buy equipment, hire personnel, build holding facilities, processing facilities…repatriate the Mexican nationals in the new buses…and hand the bill to the Federal Government in court.
Hey, they have the job, the obligation and responsibility to secure the border. The bill is theirs. Plus ALL the rest of the States can climb aboard.
Obama may have just mopped himself into a corner.
The Federal Government cannot afford to go through this bloody fight and lose. I see their options limited to either watering it down to save face and beat a retreatby withdrawing and striking some sort of deal with Arizona and honor their responsibility…Tying the case up in court forever…or dismissal.
An outright loss would open a huge can of worms. They just cannot afford to lose.
This could be a lot of fun.

So what it was “spoken for ” when the Spanish got there. Spain was spoken for when the Moors invaded and is now spoken for by the people that killed the Moors. “Owning a large geographic area usually done by the meanest SOB around, at least temporarily.

It will continue as long as people will tolerate unconstitutional rulings from anti-constitutional judges who are but politicians in robes.

Somewhere, some day, somehow, we need to ignore their rulings (since impeachment is anethma to our irrational rulers

The constitution is not rocket science and case law does not a constitution make. Emanations from penumbras can be obtained easier by rubbing a lamp. Let’s stop pretending our society is a society of laws. If we can dump morality and God from the public sphere and just rely upon deception – why not dump law -it’s only a weapon (like truth) for the politicians to manipulate.

The Obama administration surely has tossed this action into the political ring so it can wash its hands of the matter. If there is ugly business to be done, there already exist sufficient government agencies to make sure that it happens. Actual involvement of the President will only occur when there are significant symbolic gains to be had. Voters, after all, do not vote with their wallets, but with their hearts, and only symbolic messages can penetrate.
The state preservation of autonomy in prosecuting and defining crimes really needs to be preserved. The primary benefit from such autonomy is a competitive environment among states providing a testing ground for new policies enabling us to learn which are effective and which are wasteful. If anything, the federal law should be abolished, and each state should make its own decisions regarding immigration policy. But that gets difficult, doesn’t it? Here legal theory doesn’t jive well with geography.
As for laws regulating the flow of immigrants, I am opposed to them, at both the federal and state levels. We have learned that laws regulating trade of goods create dead weight losses to our economy. The same logic applies to regulation regarding the movement of labor.
To be sure there are significant obstacles: Welfare costs would rise. Public schools would be crowded. Wages for lifelong citizens may fall.
But the injustice of entitlement programs extends beyond the application of them to illegal immigrants and applies equally to lifelong citizens. No one should be receiving money transferred through forced taxation, regardless of their birthplace. And competition is what has made our economy great. To fear it now may be merely a testament to our wealth. If increased immigration forces us all to work harder: good! Then we will all be better off.
I am opposed to the lawsuit being filed. I am more opposed to the existence of laws regulating the mobility of labor.
Get rid of immigration quotas. Screen at the border for criminals and disease, but let everyone else in, provided they have to pay their own way.

I think your last sentence is where it all falls down. The liberals want NO screening of anyone, anywhere. Can’t screen for criminals – that would make all the non-criminals feel discriminated against. Can’t screen for disease – one of the benefits people come here for is better health care than they could get at home. No, better just to ignore the legalities and let people come and go. Nothing to see here. Move along…

There is something to be said for a “guest worker” program. Indeed screen all persons at the border (which 99% of countries do). But issue the “workers” an identity card with proof (at their own expense) of non-criminality and health. Holders of this type of ID should not therefore be able to claim any unemployment/welfare benefits, ipso facto; nor any health benefits unless insured or hurt on the job. Regarding “anchor babies”: there should be no such classification as the “guest” is here temporarily, such as a tourist.
Just a thought.

It’s pretty clear that one of the chief motivations for this suit is to show Obama’s base that he is “doing something” about the immigtration problem – even in a purely negative way. Whatever the result in U.S. District Court, this thing is going up the full federal appellate process (and probably down and then up again) and will remain unsettled for some time to come. However the suit will get Obama past the 2010 mid-term elections and keep the Latino vote largely within his camp. It will also provide a little red meat to the elites on the Left.

The Democrats are taking the chance that those who support Arizona’s immigration initiative will be partially satisfied by the specter of a “full court review” of the issue. They are also calculating that any moderate votes that they lose will be offset by fresh commitments from the Latino voting bloc.

As to electricity regulation under the Commerce Clause, the State of Texas has kept their main electric grid electrically disconnected from those outside the state since day one and so have escaped most federal regulation – so far.

My biggest disappointment was Justice Scalia’s vote to uphold federal preemption of marijauna laws during Raich against the direct vote of the citizens of California.

Yes, Holder’s suit was an election year ploy to win Hispanic votes. the Obama Administration is entitled to controlling federal policy but not federal and state law. Arizona is complying with federal law but not with Obama Administration policy. The courts will enforce the law (we hope, expect, and can demand.)

“[a] Screen at the border for criminals and disease, but [b] let everyone else in, [c] provided they have to pay their own way.” “a” is certainly not being done now. “b” is not necessarily desirable – but in any event is a matter of public policy, and Americans aren’t ready to have a billion people in our boundaries. And [c] is unobtainable – we’ve had provisions for the poor since the founding (e.g poor farms), and the bill for our own sick and poor is high enough. No thank you.

No, Arizona should sue the Federal government.
Mexico has nothing to do or say about it, but the Federal Government is responsible for securing the borders. Like I say, it would be great if Arizona won, filed counter-suit, formed their own border control, fences, camps, courts, personnel…and handed the bill over to the Federal Government in court.
Then all the States could pile on.

I can’t immediately find the link, but someone has suggested that the Obama Holder Justice Department sue the sanctuary cities for interfering with the federal government’s enforcement of immigration laws and policy.

How silly. That might make a bit of sense and is therefore prohibited.

The final judgment will no doubt favor Arizona – and other States choosing to enforce existing federal legislation.

It’s one thing to endeavor to draft new legislation beyond the purpose and scope of existing federal legislation but that’s not the case with 1070. The Arizona matter is about enforcement of existing laws– which have already been enacted under the supremacy powers of the United States Constitution.

Since when does the President get to pick and choose which laws to enforce?

WTF was he thinking?

E.M.
Arizona Resident
ps

It also pisses me off knowing my Federal tax dollars are advancing an action my states taxes are defending in a suit the parties know the tax payers have no standing. (Az should file its counter-suit and should also file against the cities which passed legislation to harm the Arizona econmy. Its time to put a judicial foot up Obamas ass).